Saturday, May 05, 2007

Toward a Japanese Constitution

Japan celebrated the 60th anniversary of its constitution on May 3. “Celebrated” might be a little strong, considering that the government of Prime Minister Shinzo Abe is hell-bent on scrapping the charter and promulgating a new document, one that weakens the famous anti-war clause that makes Japan unique in the world.

The current constitution was written in 1947 in a week of frenzied activity by two dozen Americans after the Supremo, General Douglas MacArthur, rejected several attempts by the Japanese government to do the job. He judged that their results were not sufficiently different from the Meiji Constitution under which Japan went to war.

Since its founding in 1955, the conservative Liberal Democratic Party (LDP) has advocated scraping the American-written document and adopting a “Japanese” one. In November 2005 on the 50th anniversary of the founding of the party the leaders unveiled a draft. Abe is now working to have it adopted.

For months it seemed as if the LDP drafters would try to inject every reactionary idea they could think of. They seemed intent, for a while, on scrapping or curtailing Article 24, Japan’s Equal Rights Amendment. Or they might add some limitations on freedom of speech by permitting restrictions on publications that might have a bad influence on youth.

Fortunately, the draft that was published in 2005 contained none of these ideas. Indeed, the draft proposed relatively modest changes to the constitution, including its recommendations on the anti-war clause.

The irony is that this proposed new “Japanese” constitution retains about 99% of the “American” constitution. The changes, with the possible exception of a proposed new preamble, could easily be effected by simply amending the current document. But then it wouldn’t be a “Japanese” constitution.

The main changes include: a new and more nationalistic preamble which former prime minister Yasuhiro Nakasone, chairman of a drafting subcommittee, says he wants all school children to be required to memorize and recite.

The proposed constitution tweaks Article 20, which guarantees freedom of religion and spells even more plainly than the US Constitution the separation of church and state. This was designed to end state Shinto, which was judged to be part of the apparatus of war time emperor worship. The new wording would permit the Shinto, and perhaps Buddhist organizations to receive money from state coffers to perform certain ceremonies and functions.

And, of course, it modifies the constitution’s most famous clause, Article 9, which prohibits Japan from maintaining military forces.

The proposed LDP draft retains the first sentence of Article 9, which reads, “The Japanese people forever renounce war as a sovereign right of the nation.” It modifies the second to specifically allow Japan to maintain defense forces and participate in collective defense.

For years Japan has had to go through legal contortions to justify its fairly large “self-defense” forces, participate in international peacekeeping operations, such as those in Cambodia, and, more recently, to be a loyal “ally” of the US in operations in Afghanistan and Iraq (the quotes are used because technically Japan doesn’t have “allies”).

Article 9 has long been the stumbling block to any kind of constitutional reform in Japan, even innocuous housekeeping amendments. It was thought that any attempt to amend the constitution would inevitably lead to changes in Article 9, which was, and still is, sacrosanct for many sectors of Japanese society.

The situation was somewhat analogous to the US. Many who favor more controls on guns would love to modify the Second Amendment to the constitution but are restrained by the taboo of tinkering with any one of the original Bill of Rights.

In the several decades when Japan’s political system revolved around the LDP and its main opposition, the Socialist Party of Japan, it seemed as if the socialist party’s only purpose in life was to keep enough seats in the Diet to deny the LDP the two-thirds majority it needed to monkey with the constitution (another element in the draft would lower this threshold to a simple majority, retaining the need for a national referendum).

With the political changes that took place in the 1990s, sending the socialists into history, the climate for constitutional change brightened considerably. The current main opposition, the Democratic Party of Japan, jettisoned knee-jerk opposition to the self-defense forces and revising the constitutions (which isn’t to say it will back every LDP proposal).

After all, the leader of the Democrats, Ichiro Ozawa, is the man who coined the term “normal nation” in his book, a Blueprint for Japan. The reasoning behind the phrase was that Japan should possess a legitimate armed force, just like every other “normal” nation.

The sad thing about the current debate is that there are numerous constitutional changes that should have been debated to give Japan better governance. For example, the draft simply retains the American formulation of the emperor as a “symbol of state” but does not wade into the highly controversial matter of providing for the succession.

A new constitution might have done more to balance the rights of individuals versus the collective good in the matter of imminent domain, which has vexed infrastructure development throughout the postwar years.

A genuine debate might have raised constitutional issues that were not on the horizon in the 1940s, such as the right to privacy, public access to government information and possibly issues concerning the environment.

What has emerged is the fruit of a bunch of old pols working behind closed doors to change a document that was written by a bunch of foreigners working behind closed doors. Why couldn’t Japan convene a constitutional convention to write a new charter? Then it might have a genuine “Japanese” constitution.


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